What place does the law have in what happens privately between consenting adults? Photo: Getty
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Is the government finally ready to legalise BDSM?

The Ministry of Justice has begun a review process into a law that is widely recognised as outdated, archaic in language, and Victorian in its approach. But do they really want to change anything?

The short answer seems to be: not if it can help it. Unfortunately, for those still handcuffed to the inconsistent muddle that passes for law in this area, the Ministry of Justice has just kicked off a process that could result in a spectacular own goal sometime in 2015.

They have officially asked the Law Commission, a “statutory independent body” of some influence when it comes to law-making, to review the law on offences against the person.

In the spotlight is the Offences Against the Person Act 1861 (OAPA), which they admit is widely recognised as outdated, archaic in language, and Victorian in its approach of listing separate offences for unique scenarios. Do we really, they ask, need a specific offence of “impeding a person endeavouring to save himself from a shipwreck”?

Of course, what they don’t mention is the central role this Act has played in shaping the legal landscape in respect of BDSM. For it was under the OAPA that the landmark Spanner case was prosecuted in the 1990s: and despite contrary rulings, it is this verdict that continues to dictate the limits to consensual sex.

Incredible as it may seem to those who have grown up post-Spanner, there was a once-upon-a-time golden age when the prevailing assumption was that pain, inflicted consensually and in pursuit of mutually satisfying erotic outcomes was permissible. That was not an unreasonable point of view. After all, you could – you may still – beat an opponent senseless in a boxing ring and, providing all is done in accordance with the rules, and consensually, there is no problem.

Why should a beating of a sexual nature be any different?

This changed when a police raid in 1987 found a videotape of a number of men involved in some fairly heavy sado-masochist activity, including beatings, genital abrasions and lacerations. The police were shocked: was this, perhaps, the smoking gun; the first definitive instance of a snuff movie (a film in which one or more of the participants are intentionally murdered on camera)? After much investigation, the truth turned out to be rather different.

The on-camera action was consensual. A form of erotic “play”! A more enlightened police force might have quietly tiptoed away. But this was Manchester, then the beat of committed and upright Christian Chief Constable James Anderton: a man who had already established a reputation for clamping down on gay clubs on his patch. The police had already spent a small fortune – estimated to be close to $4m – on their “Operation Spanner”. There was no way someone wasn’t going to pay.

And that is exactly what 16 gay men did when, in December 1990, the courts handed down sentences ranging from fines to up to four and a half years in prison apiece. Some later had their sentences reduced on appeal: but this was a one-off discount, based on the fact that for the most part, participants were genuinely unaware that their actions were illegal. We have been warned, and should expect little leniency in future.

Many of those convicted were sent down on the basis of their own words. So sure were they that they had committed no offence that they freely incriminated themselves, providing the police with the evidence that would later be used to convict them.

The case became something of a cause celebre in both BDSM and LGBT circles, with failed appeals before the House of Lords (1992), and the European Court of Human Rights (1997). In fact, the 1992 verdict was a “damn close-run thing”, with the views of police and authorities endorsed by just three of the five Lords sitting. One vote the other way, and the recent history of UK sexuality might have been a very different thing indeed.

There have, too, been apparently inconsistent rulings since. Most notable was the case of R v Wilson, in which it was ruled that consensual branding, between husband and wife, was not unlawful. The judge ruled that a husband who had branded his wife with a hot knife while the two were consensually re-enacting a scene from The Story of O was not guilty of an offence.

Overturning an original conviction, the Court of Appeal stated: “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution”.

These remarks, while outwardly positive for the BDSM community, have done little to dispel the view that the law is not even-handed between gay and straight in sexual matters.

Besides, the Spanner standard – that BDSM is lawful so long as any injury, pain or mark is no more than “trifling and transitory” – is what tends to be applied by police and courts. This echoes the view of Lord Templeman, one of the triumvirate of Lords who delivered the 3-2 thumbs up to the Spanner convictions in 1992, that “pleasure derived from the infliction of pain is an evil thing”.

Or as the Law Commission put it a consultation, Consent in the Criminal Law, in 1995: the law was now “unprincipled” and thoroughly inconsistent. Individuals might happily and lawfully consent to an assault for medical reasons (surgery) or on the sporting field. They could consent to piercing, tattooing and presumably, branding.

They might even, following 19th-century precedent which treated the practice of flagellation in the Christian church as a lawful activity, consent to the infliction of pain for religious reasons. All of the above, plus, more recently, television that makes a show of ritualised celebrity humiliation is lawful. But only so long as sex is not involved.

This approach, they argued, was not without its costs: whole communities were alienated from the police, with many perennially suspicious that the authorities made disproportionate use of the law on BDSM to crack down on gay clubs and events.

The outcome, though, as with so many other researched and evidence-based consultations, was less than zero.

An incoming Labour government was not interested in liberalising the law around sexual consent. The prevailing ethos may be gauged from the deliberations of the Sexual Offences Review Team (SORT), which was established by the Home Office to carry out a much-needed review of sexual offences shortly after. It was SORT that laid the groundwork for the Sexual Offences Act 2003, and which argued for important reforms of the law on rape: for instance, substituting “reasonable belief in consent” as the test for the previous troubling “honest belief”. 

Although the focus of the SORT was on consent, it was much more concerned with negotiating the individual’s right to withhold consent than endorsing the suspiciously liberal views of the Law Commission. Contemplating necrophilia, for instance, they conceded that there was no evidence it ever happened or was even a problem. But discovering there was not actually a law against it, and considering the very idea repugnant, they proposed one.

So the law on BDSM stuck: inconsistent, outdated, archaic. If government has its way, it seems likely that that inconsistency will stay too. The question is: will this consultation prove a somewhat larger can of worms than they expect?

The last consultation attracted more public interest than almost any other before or since. Campaigning organisation, Spanner, which mobilised much public support on this issue twenty years back is even now preparing to rumble. Again.

The issue is live once more. With political uncertainty on the cards for some while to come, it is possible that the legal establishment is about to receive a (non-consensual) caning.

Jane Fae is a feminist writer. She tweets as @JaneFae.

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Mumslink shows how online parenting networks are coming of age

Women online are changing the relationship between digital domesticity and digital independence. 

The habit of “speaking as a mother” came in for its fair share of criticism this summer. Andrea Leadsom’s insinuation of superiority over Theresa May, her rival for the Tory leadership, elicited widespread scorn – not least from those who have done most to strengthen the voice of mothers as a group: internet mums.

Over the past 15 years, the ten million users a month who log on to Mumsnet have been courted by politicians in webchats and speeches alike. The 2010 general election was even named “the Mumsnet election” in their honour.

From the start, parenting networks attracted users interested in comradeship, as much as those after information. 

For Jo Williamson, a mother-of-two, the trigger was the day her second child left for school, a jarring experience. “I went into a blind panic, thinking: ‘Blimey, I’m going to be sitting in an empty house just waiting for everybody to come back.’” In response, Jo and her business partner Jane Pickard came up with the idea for a new site that focuses on the fluid nature of many women’s professional and family lives.

The resulting network, Mumslink, uses carefully edited news feeds to introduce readers to ideas, businesses and charities that complement all aspects of their lives – from recipe tips to volunteering. “There are so many women out there with a plethora of talents but most of the time, because you’re with your children, nobody asks you to get involved,” Williamson says.

Similar feelings of isolation led Siobhan Freegard to found Netmums, one of the UK’s largest parenting sites. Back in 2000, she had barely heard of “social networks”, nor of Mumsnet, which launched around the same time, yet she knew that mothers needed a place “to share their stories and maybe meet up in the offline world, too”.

Such identity-building led to divisions over “the right way” to be a mother. A tense rivalry developed between the slightly younger Netmums and the more educated and affluent Mumsnetters (Tesco and Waitrose didn’t sponsor different networks for nothing). Within the sites’ pages, differences of opinion over working v stay-at-home parenting sparked allegations of hostility and bullying. Still, the media researcher Sarah Pedersen says there’s an argument that these sites have helped produce a reduction in depression and anxiety, as well as greater opportunities for women to negotiate “the tension between themselves and their role as mothers”.

There are signs that this online culture is growing up. The perception of mums as “a bit insular and thick” is more easily countered, says Justine Roberts, the founder of Mumsnet, “now that so many mothers are able to express their individuality, their interests and their expertise in the public domain”.

According to Freegard, the very act of online sharing has helped begin to repair the rifts within the parenting debate. “With social media, we see working mums and part-time mums, and we see mums changing roles as their children change ages, and we understand that there are different angles to things – that everyone has their story.”

This is more pronounced in the world of video blogging, Freegard says. On her YouTube channel, Channel Mum, people talk calmly about controversial subjects that would have been a “bloodbath” on Netmums, such as ear piercing for very young children. “With video, you can see the person in real life and that helps you feel for their story,” she says.

Perhaps the greatest effect, however, has been on how the internet allows parents to work from home. As many as 160,000 part-time ventures have been started by British women in the past two years alone, self-styled kitchen-table start-ups. Sites such as Mumslink (similarly funded by Williamson and Pickard and run out of the former’s front room in Hertfordshire) aim to help this home-based workforce with new clients. One Mumslinker visits the site to write about her own line of natural nail varnish, another to promote her hot-tub business. The company Digital Mums uses it to encourage women to expand their digital skills.

Commercial savvy is something that Freegard is also keen to develop at Channel Mum – equipping her contributors with financial advice and small stipends. “I remember looking at mummy bloggers and thinking, ‘You guys didn’t get properly organised,’” she says. Freegard points out that most early mum bloggers never grew their audience beyond those already involved in parenting online, and struggled to become more professional as a result.

Quite what the future relationships will be between the brands, businesses and audiences for information on parenting has yet to be established. Some users will baulk at being increasingly cast in the role of consumer. At the same time, the networks’ names – Mumsnet, Netmums, Mumslink, Channel Mum – suggest that parenting is still a woman’s domain.

Yet a better balance seems to be emerging in the relationship between digital domesticity and digital independence. Greater gender equality in the distribution of start-up funding, more job vacancies that allow flexible working, and increasing numbers of prominent women in the tech industry are just some of the things the community is striving to promote. In Britain, which has an ageing population and an ever-growing community of carers, the rise of these networks seems sure to be a net gain for us all. 

For more, visit: mumslink.com

India Bourke is the New Statesman's editorial assistant.

This article first appeared in the 25 August 2016 issue of the New Statesman, Cameron: the legacy of a loser